Allahabad High Court
Amar Nath vs State Of U.P.Through Secy Home And 2 Ors on 26 February, 2015
Author: Ajai Lamba
Bench: Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1. Case called out.
2. None appears for the petitioner.
3. The petition relates to the year 2003 and therefore this Court cannot wait any longer for appearance of counsel for the petitioner.
4. This case is being decided considering the pleadings and assistance given by learned counsel for the State.
5. The petition seeks issuance of a writ in the nature of certiorari quashing chargesheet dated 27.2.2003 issued by respondent no.3, appended with the petition as Annexure No.1.
6. The petition also seeks issuance of a writ in the nature of mandamus restraining respondent no.3 from conducting further proceedings in pursuance of the chargesheet.
7. Learned counsel appearing for the respondent State has drawn attention of the court towards counter affidavit filed on behalf of respondents to say that during the process of appointment/ selection, the petitioner submitted a false affidavit regarding his criminal antecedents. Copy of the affidavit has been appended as Annexure No.CA-1. At the stage of recruitment, accepting the affidavit as depicting true facts, the petitioner was appointed temporarily on the post of Constable.
8. Learned counsel has drawn attention of the court towards a communication dated 21.12.1998 which clarifies that in case false affidavit is filed or true facts are concealed, criminal proceedings be initiated and action be taken against such candidates. Copy of the communication has been appended as Annexure No.CA-2.
9. Services of the petitioner have been terminated vide order dated 19.3.1999. The order is neither stigmatic nor punitive. The petitioner preferred Writ Petition No.520(S/S) of 1999 : Amar Nath Vs. State of U.P. and others, which was decided vide judgement dated 22.3.2002. The petition was allowed while giving liberty to the authority concerned to proceed against the petitioner in accordance with the disciplinary and punishment rules for alleged misconduct.
10. In deference to the order passed by this court in Writ Petition No.520 (S/S) of 1999, the proceedings were carried against the petitioner as per U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as ''the Rules'). Impugned chargesheet was issued, operation of which had been stayed by this Court vide order dated 11.3.2003.
11. Shri Rohit Verma, learned counsel for the respondent State has pointed out that rejoinder affidavit has not been filed. Order of stay has been procured without revealing all the facts during arguments. It was not pointed out to the court at the time of arguments that the writ court while dealing with writ petition no.520 (S/S) of 1999, had given liberty to the respondents to proceed afresh in accordance with the Rules. Under the circumstances, action is being taken against the petitioner only in deference to order of the court, and also in conformity with the disciplinary and punishment Rules.
12. Learned counsel has relied on 2006 (12) SCC 28 : Union of India and another Vs. Kunisetty Satyanarayana to contend that a writ petition filed against a show cause notice or chargesheet would ordinarily be not maintainable.
13. It has been brought to the notice of the court that special appeal had been preferred by the respondent State against decision dated 22.3.2002 (supra).
14. The relevant file of the special appeal has been summoned. It transpires that Special Appeal No.190 of 2002, State of U.P. through Principal Secretary, Home Department and another Vs.Amar Nath was filed. The appeal was dismissed vide order dated 24.7.2009. The order is extracted hereinbelow :
"The instant special appeal has been filed by the State by more than one year and two months' delay.
No ground has been shown for condoning the delay.
Apart from this, the respondent was constable in P.A.C. and while he was undergoing training, his services were terminated on 19.3.1999. Thereafter, the respondent preferred writ petition alleging that the foundation of the order dated 19.03.1999 is the alleged misconduct that he did not disclose (in the relevant papers and affidavit submitted at the time of recruitment) that he was earlier involved in a criminal case under Sections 147, 323, 307 I.P.C., P.S. Belipar, District Gorakhpur. Learned Single Judge has found that the respondent was acquitted much before he had applied for the post.
Learned counsel for the appellant assailing the aforesaid order submits that even if, the respondent was acquitted before he applied for recruitment, still he was under an obligation to fill the column which requires that whether he was earlier involved in any criminal case or not and if, involved, he should mention about decision of the court for which he has no submitted anything in writing.
We do not enter into the plea in the instant appeal for the reason that the respondent has already been reinstated in service on 02.06.2002 and he is continuing in service. However, learned Single Judge has given liberty to the State to take fresh action after affording opportunity to the respondent.
We therefore, do not find any merit in the special appeal as well as no ground for condoning the delay in filing the special appeal is made out.
Since the application for condoning the delay in filing special appeal is rejected, therefore, the Special appeal is also dismissed." ( emphasis is mine)
15. Shri Verma has vehemently argued that under recruitment rules, the petitioner was required to furnish an affidavit in regard to his criminal antecedents. Admittedly, such antecedents were not disclosed. The fact that the petitioner had been acquitted, would not be relevant in this context and would not be a defence available to the petitioner in these proceedings. Suppression of information itself amounts to moral turpitude and therefore the petitioner is required to face disciplinary proceedings and get a verdict from the disciplinary authorities. At this stage, in writ jurisdiction the petitioner cannot take the defence that because the petitioner had been acquitted in the criminal case prior to his appointment, the fact being unnecessary had not been disclosed/ declared and therefore writ jurisdiction can be invoked. In this regard, learned counsel has relied on Devendra Kumar Vs. State of Uttaranchal : 2013 (9) SCC 363.
16. I have considered the contention of the learned counsel.
17. Following has been held in Kunnisetty's case ( supra) (relevant paras 12, 13, 14, 15 and 16) :
" 12. In our opinion, the High Court was not justified in allowing the Writ Petition.
13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh : (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse and Anr. (2004) 3 SCC 440 ; Ulagappa v. Divisional Commissioner, Mysore and Ors. : (2001) 10 SCC 639 ; State of U.P. v. Brahm Datt Sharma etc. : (1987) 2 SCC 179.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter." ( emphasis supplied by me)
18. I have also referred to the judgement rendered by Hon'ble Supreme Court of India in Devendra Kumar (supra). The following needs to be extracted from the judgement : (relevant portion paragraphs 12 to 26 ) "12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.
13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide: S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath : AIR 1994 SC 853. In Lazarus Estate Ltd. v. Besalay : (1956) 1 All E.R. 341, the Court observed without equivocation that : (QB p.712) "...No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
14. In A.P. State Financial Corporation v. GAR Re- Rolling Mills & Anr. : AIR 1994 SC 2151; and State of Maharashtra & Ors. v. Prabhu : (1994) 2 SCC 481, this Court has observed that a writ Court, while exercising its equitable jurisdiction, should not act to prevent perpetration of a legal fraud as Courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law."
15. In Smt. Shrisht Dhawan v. M/s. Shaw Bros., AIR 1992 SC 1555, it has been held as under:-
"20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
16. In United India Insurance Company Ltd. v. Rajendra Singh : AIR 2000 SC 1165, this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has not lost temper over all these centuries. A similar view has been reiterated by this Court in M.P. Mittal v. State of Haryana & Ors. : AIR 1984 SC 1888.
17. In Ram Chandra Singh v. Savitri Devi : (2003) 8 SCC 319, this Court held that "misrepresentation itself amounts to fraud", and further held "fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad." The said judgment was re-considered and approved by this Court in Vice-Chairman, Kendriya Vidyalaya Sangathan & Anr. v. Girdharilal Yadav : (2004) 6 SCC 325).
18. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the Court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India & Ors. v. M. Bhaskaran : AIR 1996 SC 686, this Court, after placing reliance upon and approving its earlier judgment in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi : (1990) 3 SCC 655, observed as under-
"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer."
19. In Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar : (1996) 11 SCC 605, this Court examined the similar case where the appointment was refused on the post of Police Constable and the Court observed as under:
"3. ...It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offence, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequence. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service." (Emphasis supplied)
20. In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav : AIR 2003 SC 1709; and A.P. Public Service Commission v. Koneti Venkateswarulu : (2005) 7 SCC 177 this Court examined a similar case, wherein, employment had been obtained by suppressing a material fact at the time of appointment. The Court rejected the plea taken by the employee that the Form was printed in English and he did not know the language, and therefore, could not understand what information was sought. This Court held that as he did not furnish the information correctly at the time of filling up the Form, the subsequent withdrawal of the criminal case registered against him or the nature of offences were immaterial. "The requirement of filling column Nos. 12 and 13 of the Attestation Form" was for the purpose of verification of the character and antecedents of the employee as on the date of filling in the Attestation Form. Suppression of material information and making a false statement has a clear bearing on the character and antecedent of the employee in relation to his continuation in service.
21. In State of Haryana and Ors. v. Dinesh Kumar : AIR 2008 SC 1083, this Court held that there has to be a deliberate and wilful misrepresentation and in case the applicant was not aware of his involvement in any criminal case or pendency of any criminal prosecution against him, the situation would be different.
22. In Deptt. of Home, A.P. v. B. Chinnam Naidu : (2005) 2 SCC 746, this Court held that facts are to be examined in each individual case and the candidate is not supposed to furnish information which is not specifically required in a case where information sought dealt with prior convictions by a criminal Court. The candidate answered it in the negative, the court held that it would not amount to misrepresentation merely because on that date a criminal case was pending against him. The question specifically required information only about prior convictions.
23. In R. Radhakrishnan v. Director General of Police and Ors. : (2008) 1 SCC 660, this Court held that furnishing wrong information by the candidate while seeking appointment makes him unsuitable for appointment and liable for removal/termination if he furnished wrong information when the said information is specifically sought by the appointing authority.
24. In the instant case, the High Court has placed reliance on the Govt. Order dated 28-04-1958 relating to verification of the character of a Government servant, upon first appointment, wherein the individual is required to furnish information about criminal antecedents of the new appointees and if the incumbent is found to have made a false statement in this regard, he is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent authority. The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case.
25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. "Subla Fundamento cedit opus" - a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340; and Lily Thomas v. Union of India and Ors. : (2000) 6 SCC 224. Nor can a person claim any right arising out of his own wrong doing. (jus ex injuria non oritur).
26. The courts below have recorded a finding of fact that the Appellant suppressed material information sought by the employer as to whether he had ever been involved in a criminal case. Suppression of material information sought by the employer or furnishing false information itself amounts to moral turpitude and is separate and distinct from the involvement in a criminal case. In view of the above, the appeal is devoid of any merit and is accordingly dismissed."( emphasis supplied by me)
19. Considering the law as declared by Hon'ble Supreme Court in Kunnisetty's case (supra) as noted above, it becomes evident that the petitioner is not entitled to continuance of stay. Ordinarily, writ petition is not to be entertained against a chargesheet. This Court is also of the view that the order passed by this Court in writ petition no.520 (S/S) of 1999 dated 22.3.2002 gave liberty to the respondents to initiate disciplinary action in accordance with the Rules.
20. A perusal of order dated 22.3.2002 establishes that the liberty given to take fresh action against the petitioner was not taken away by the special appeal court. Thus, fresh action/impugned action has been initiated against the petitioner under liberty given by this Court in its writ jurisdiction. The petitioner neither challenged the writ court order nor the order passed in Special Appeal.
21. In deference to order dated 22.3.2002 when the respondents initiated action against the petitioner, the present petition has been filed. It is clear from above noted facts that it was on the writ petition of the petitioner that order dated 22.3.2002 was passed. The petitioner did not challenge the order, rather accepted it. Having so done, the petitioner could not have impugned the proceedings initiated under liberty given by the court.
22. This Court is also of the opinion that once charge sheet has been issued under due process, the appropriate remedy available with the petitioner is to clarify the facts before the authorities concerned under the Rules by way of giving appropriate reply, in facts and in law. The disciplinary authority would consider the stand of the petitioner and pass appropriate orders. If the petitioner is aggrieved by the order passed by the disciplinary authority, surely the petitioner can avail of remedy of appeal provided under the Rules. However, the petitioner at the first instance, cannot approach a writ court asking this court to prejudge the issue in place of a disciplinary authority and substitute its opinion in place of the opinion of the disciplinary authority. This would tantamount to frustrating the process provided by law under the Rules. Statutory Rules cannot be ignored by a writ court.
23. This Court is of the considered opinion that the present is not an exceptional case wherein writ jurisdiction should be invoked so as to quash the charge sheet. It is the admitted case of the petitioner that the petitioner was involved in a criminal case, however, had been acquitted. At the stage of recruitment, the petitioner was required to file an affidavit clearly stating the required fact. In these circumstances, even considering the facts of the case, the petitioner is not entitled to any relief in equity in this extraordinary jurisdiction.
24. This court is in agreement with the contention made by Shri Verma learned State Counsel. Judgement rendered in Devendra Kumar's case has been invoked for the right reasons. At this stage, the writ court would not be in a position to say that non disclosure of criminal antecedents by the petitioner is not relevant, particularly in view of ratio of judgement rendered by the Hon'ble Supreme Court of India in Devendra Kumar's case(supra). This Court, in view of the law laid down by the Hon'ble Supreme Court of India as noted above, cannot ignore the criminal antecedents at this stage to say that non disclosure of criminal antecedents was justified. In such circumstances, in the considered opinion of the court, chargesheet cannot be quashed at this stage, merely on account of acquittal of the petitioner in the criminal case. This is so because criminal antecedents of the petitioner are not at issue. Rather issue is non disclosure of criminal antecedents of the petitioner. Concealment of criminal antecedents from the employer, at the time of recruitment is at issue. The petitioner apparently was required to disclose the antecedents, which were concealed, enabling recruitment of the petitioner.
25. This Court also finds that in the pleadings, it has not been demonstrated that the authority issuing charge sheet had no jurisdiction to issue the same. No perversity can be traced in the action of the respondents, and therefore no interference is called for in extraordinary writ jurisdiction.
26. In view of the above, the petition is dismissed with no order as to costs.
27. It is clarified that anything said hereinabove, would not be construed by the disciplinary authority as opinion of this court in regard to alleged misconduct committed by the petitioner. This court has only considered limited prayer made in the writ petition viz.a.viz desirability of quashing the impugned charge sheet.
28. Substantial delay has been caused after issue of the chargesheet. Proceedings were stayed by this court vide order dated 11.3.2003. The period for which the proceedings were stayed, will not be taken into account by the respondents while considering the misconduct of the petitioner. Disciplinary proceedings are directed to be concluded at the earliest, preferably within a period of four months of receipt of certified copy of this judgement. The petitioner and the respondents would not seek any adjournment before the authorities, and would render complete cooperation.